This blog takes an interest in issues associated with Freedom of Information (FOI) and privacy legislation in Australia. It also includes comment about open transparent and accountable government and related issues generally drawing on developments in Australia and overseas. Information contained on this site is general in nature and does not constitute legal
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Friday, December 28, 2012

Just before Christmas the European Commission formally recognised the adequacy of
personal data protection in New Zealand, opening the way for increased
trade with the European Union. The NZ Office of the Privacy Commissioner (OPC) has been working for more than 10 years towards this outcome.

The EU’s 1995 Data Protection Directive states that personal data can be transferred to countries outside the EU
and the European Economic Area only when an adequate level of protection is guaranteed.

The Media Release announcing New Zealand adequacy listed other countries recognised by the EU as providing adequate protection:

For years it's been said here there had been no ruling, that the EU had not
granted Australia ‘adequacy status’ nor stated that Australia’s privacy
regime was
inadequate.

Maybe simply too much Ho, Ho, Ho at this time of the year in Brussels?

There is no reference to recognition of Australian adequacy on the OAIC website.

While changes to the Privacy Act in 2004 and some of the recent amendments (still a long way from coming into force in May 2014) may have helped the cause, inadequacies cited in the ALRC 2008 report that have not been addressed include the small
business and employee records
exemptions
and, in the context of cross-border data flows, the development and
publication of a list of laws and binding schemes that effectively
uphold principles for
the fair handling of personal information.

Elsewhere in EU published material is this reference to an agreement between the EU and Australia on the processing and transfer of European Union-sourced passenger name
record (PNR) data by air carriers to the Australian Customs Service.

But no published opinion about the adequacy of Australia's privacy law along the lines of that issued for New Zealand and others.

Friday, December 21, 2012

The revelations this week about Customs won't give solace or much comfort to Allan Kessing, even of the cold kind. But they vindicate his warnings in reports written 10 years ago that were ignored by authorities and perhaps provide just a little satisfaction.

Mr Kessing said in April 2005 he approached Anthony Albanese, the
then-opposition transport spokesman, and briefed one of his staffers
about his concerns surrounding the reports, before meeting personally
with Mr Albanese. Information contained in Mr Kessing's reports appeared in The Australian newspaper a few months later. Mr Kessing claims he then was the subject of a witch hunt.
His home and that of his recently deceased mother were raided in 2005,
and the Australian Federal Police spent $250,000 tapping his phones and
putting him under surveillance, he said. In 2007 Mr Kessing was convicted for breaching Section 70 of the crimes act, but denies he supplied The Australian with the report. Mr Xenophon said in the wake of this week's revelations about
alleged corruption and criminal activity at Sydney Airport, Mr Kessing
should be pardoned and his two reports publicly released."The scandal is that this man who deserves a medal for the
work he did 10 years ago was actually persecuted through the courts, had
his life effectively ruined," Mr Xenophon said.

Have the best Christmas you can, Allan.

And the same to former Customs bosses, Mr Albanese and current and former staffers, ALP leaders who made much of the injustice to Kessing before the 2007 election propelled them into government, and Minister Jason Clare and those that drafted for him the refusal of the Kessing pardon application.

When the government gets around to legislating for comprehensive whistle-blower protection after five years of promise, let's call it The Kessing Act.

Effectiveness - results, outcomes - features in the the Terms of
Reference for the Hawke review of the Freedom of information Act and related acts.

Efficiency is not mentioned.

However Dr Hawke was directed to consider “the role of fees and charges’ and “the desirability
of minimising the regulatory and administrative burden including costs, on
government agencies.” The Attorney General managed to turn that into this in her Media Release:

"$41 million of taxpayer money was spent across the
Federal Government in 2011-12 processing FOI requests.The review will
consider how the Government’s FOI costs could be reduced, including the
Information Commissioner’s recent recommendations regarding the current
charging regime."

In my submission (now published with a few other new ones) I argued that it is clearly desirable to minimise costs and the administrative burden
through efficiencies while seeking to achieve desired outcomes and
results.

Efficiency requires an assessment of how well systems and
resources are utilised and applied in the implementation of the laws.

We don't know much about this.

Dr Hawke should do some digging for information that would throw
light on what resources are allocated to the information access function,
whether agencies fully utilise available technology, what constitutes good
practice and whether agencies apply such methods and practices.

The $41 million cost estimate for the FOI
function in 2011-2012 included
staff costs of $33.8 million, and $6.5 million in legal advice and litigation
costs.

The
averaged agency cost per request was $1876, up from $1799 the previous year and double the
cost in 2007-2008.

It is unclear what gave rise to the increase. Or what
agencies are doing to reduce costs.

Responding to requests for information is a cost of
doing government business in a democratic society. The public has rights and
cost should not be a significant barrier that stands in the way of exercise of
those rights.

The public also has a right to enjoy lowish costs as one of the
dividends flowing from the hundreds of millions spent on improved information
management systems within government over the years. In fact there should be
another dividend- access to tools that assist in knowing more about what
information government holds, to better inform requests from outside the loop.

The available evidence suggests some agencies are
not operating optimally.

The Auditor General for example has drawn attention to
record management shortcomings over the years, shortcomings that must
significantly impact on FOI administration.

The Cornall report on DIAC refers to aspects of poor process, leading to
long delays and presumably high cost to the agency.

At the National Information Law Conference in Canberra in November the
officer in charge of FOI at Foreign Affairs and Trade described the FOI unit as
resembling a craft shop when he assumed responsibility, with officers utilising
tape and pen to redact information by hand from documents prior to release.
Software for this purpose had been utilised subsequently. How widespread “craft
shop” practices are in FOI administration across government is unknown.

The degree to which ministers and public servants
purposefully game the system, and the resulting effect and cost is also unknown. And we don't know to
what extent an abundance of caution in interpreting the law, delay in
responding to requests, inadequate searches for relevant information and poor
decisions based on the premise that the applicant is unlikely to challenge add
to cost.

What this FOI matter cost the
Department of Industry, Innovation, Science, Research and Tertiary Education is
unclear but it is certain to be in next year’s cost statistics. It wasn’t brought on by the applicant’s
behaviour.

A
major efficiency issue is whether the right decision is made on an application
the first time. Information about the extent to which original decisions are
consistent with the law is limited and only comes to light in the event the
matter receives later visibility through the review process.Most matters are settled before final decision-we don't know how many poor decisions show up. And many applicants may simply live with the
results of a poor decision and walk away at that stage.

So in my submission, Dr Hawke should look into all this while considering “the role of fees and charges’ and “the desirability
of minimising the regulatory and administrative burden including costs, on
government agencies.” The Attorney General could of course have given him terms of reference that put efficiency much more clearly in the frame.

As
to the future regarding charges Professor McMillan’s report is a good start to discussion.

However the
proposed flat 40 hour cut off, without more, needs rethinking. The
proposal is an attempt to put more certainty around the substantial and
unreasonable diversion of resources provision that has been in the FOI act
since it commenced. It's origin is a NSW ADT decision years ago that
interpreted similar words in the NSW act to mean that anything that involved 40
hours processing time was getting into substantial diversion of resources
territory. However it was not a strict rule and other factors, including the
nature of the information sought needed to be considered.

Fiona Hudson of the Herald Sun came away from this freedom of information conference in Melbourne convinced that the start position in FOI processing is the search for a relevant exemption. I don't know if this is a fair assessment shared by others who were there - I wasn't.

Hypotheticals like the case of the fake ferry involving complex facts are a useful teaching aid. As long as the context and lead in is a strong message that the start position is that the applicant has a right to ask, and the agency must release what is requested unless there are good reasons why not based on a fair reading of the exemptions- reasons that will withstand scrutiny not just plucked out ot the air.

The reference to a "quick and dirty" decision that can be tidied up if and when the applicant seeks review that left Hudson agog is indicative of a tendency to game the system. Just how widespread this is in Victoria and elsewhere we just don't know. But it strikes a familiar chord

While the documents were fictitious, the response from the 40 or so
people in the room - many of them FOI officers or legal advisers for
councils or state government agencies - was all too real.They took to the task of suppressing the information with alarming zeal.
I
had spent the day alongside them learning about recent changes to
Victoria's FOI regime at a Leo Cussen Centre For Law conference on
November 30 - the eve of the amendments taking effect.
Feeling a
little like a poacher-turned-gamekeeper, I'd handed over $520 and signed
up under my real name. A tag revealed who I was and where I worked, but
no one seemed to be bothered about curtailing their comments.
The
lectures were helpful, but the real value of the day was the insight
into the minds of the people who handle the dozens of applications for
public information that Victorians file every day to government,
councils and agencies.
Some presenters were at pains to reinforce
that the FOI Act gives members of the Victorian public rights of access
to official documents and to remind those in the room that the public
deserved timely, consistent and complete responses to their FOI
requests.
I cheered inwardly as one officer urged others to be
open, active, helpful, efficient, collaborative and to think in the
public interest.
But comments and questions from some other
presenters and attendees left me agog. One, for example, bluntly
admitted a tendency existed in some agencies to deliver "quick and dirty
decisions", which could be "tidied up" if the applicant sought an
internal reviews.

Wednesday, December 19, 2012

An application under the Official Information Act via FYI for documents concerning New Zealand consideration of the case for joining the Open Government Partnership has produced this Foreign Ministry briefing note from February 2012.

Like the brief from Attorney General's in Canberra in May 2012, it cited no arguments against joining, suggesting it was a matter of weighing the cost against the likely criticism for not signing up that would likely follow such a decision. Two recommendations were redacted, so the document isn't quite the full story but the note to the minister recommended that membership should be an overall low priority with a ministerial submission on joining to follow once scope, costs and the risks of membership were understood. As this is the only information held by the ministry, presumably that's where things stand 10 months later.

Meanwhile the minutes of the OGP Steering Committee meeting in London earlier this month refer to the adoption of a Multilateral Partnership Framework that will seek to
leverage the capacity of multilateral bodies to
support OGP eligibility and action plan implementation - something Australia and NZ wearing various multilateral hats will encounter in those fora; and a decision to
expand the Independent Expert Panel
by two to ensure greater regional balance
– for example, by including Senior Advisors from Asia and Latin America; and a range of pressing financial, resource and other issues that Indonesia and those in the vanguard are facing.

On additional IEP members, the Criteria and Standards
sub-committee will issue an open call for nominations specifically for Senior
Advisors from Asia and Latin America, and they will also ask current IEP
members for recommendations, as well as draw on any relevant candidates from
the last round of nominations.

You would like to think an Aussie might fit the Asia bill, given Australia in the Asian Century and all that, but alas I'm dreaming.....

Of interest in newer submissions- Jeremy Tager recounts resistance to use of the act for public purposes in an attempt to access environmental information; the three parliamentary departments call for urgent clarification by the Parliament itself of the application of the FOI act to information held by them, and for the scope to be limited to documents of an administrative nature; the Inspector General Intelligence and Security wants changes to a requirement for that office to provide evidence regarding national security related matters to the OAIC and the AAT in order to limit waste of her time; and the Australian Meteorological and Oceanographic Society wants scientists and their work protected from fishing expeditions and from those prying into the peer review process.

Not published by AG's yet, but you can down load a copy of my 20 page submission from The Box. A ramble on impediments in the law and in implementation and a whole lot of question marks about culture, outcomes and results, efficiencies or the opposite, that those of us on the outside don't/can't know about, but Dr Hawke should look into. Talk about bonus christmas reading!

There are plenty of weighty issues in these and likely, in other submissions yet to be sighted, that would benefit from more than a one on one chat with Dr Hawke - which seems to be the consultation modus operandi planned for the new year.

Six months-now four-for all this is likely to mean many important issues and good ideas will struggle for attention, or enhancement.

The changes relate to the RTI act disclosure logs and the the Integrity Act - the latter regarding lobbying, with an Australian first in extending the scope to parliamentary opposition leaders, and requiring lobbyists to keep records of contacts and provide information to the Integrity Commissioner.

The legislation was so urgent apparently that as the Explanatory Note ( see under Right to information.....) states:

"The community has not been consulted on the Bill. The Acting Information Commissioner was provided with a draft of the amendments to the Right to Information Act 2009 . The Integrity Commissioner was consulted, and provided input into, the proposed amendments to the Integrity Act 2009."

(I can see a difference in wording here that may be significant.)

Leaving the "best ever" claim to one side - and Opposition leader Palaszczuk claimed the bill weakens the existing integrity laws - journalists and media organisations will be disappointed. I've heard some are pushing the Hawke review in Canberra arguing for five days for exclusive use of documents released in response to a Commonwealth Freedom of Information request. Queensland where they have had up to now at least 24 hours before released information is posted on the disclosure log is cited as a less than perfect precedent.

I guess there have been "I'm mad as hell" shouts in light of the fact that the Queensland 24 hour exclusive period has been scotched as a result of the amendments. This provision in the repealed s 78 "However, nothing about
the document (including a copy of the document) may be put on a disclosure log
until at least 24 hours after the applicant accesses the document" isn't in the substituted section 78, 78A and 78B The new formulation is to post released documents on the log "as soon as practicable" after release to the applicant.

Rumbling in media circles won't be limited to the lack of opportunity to defend the 24 hours period or argue for longer. Another aspect of the new system likely to give rise to media angst is that details of what information is sought are to be posted on the log as soon as practicable after a valid application has been received by an agency and before any decision on release has been made.

Here are the relevant extracts from the Explanatory Note (emphasis added)

Monday, December 10, 2012

The NSW Opposition leader John Robertson's latest idea is a good one: that interest disclosures by NSW parliamentarians should extend to family members and be posted online.Required disclosures are limited to the member's interests-hence a discounted car given to the wife of the then treasurer didn't need to be included-
and are available for inspection on week days during business hours in
Macquarie St.The corresponding federal parliament requirement to notify
registrable interests includes those "of which the Member is aware of
the
Member’s spouse and any children wholly or mainly dependent on the
Member." Premier O'Farrell responded that the Privileges Committee
should take a look-presumably to see if this would have been OK in 1689.

Mr
Robertson's previous transparency idea was the bill seeking to give
effect to a promise to abolish GIPA application fees made by the now
governing Liberal Party before the last election, a bit of an attempt at
political points scoring. Predictably it didn't get anywhere. The government voted it down in the Legislative Assembly on 21 November.

The application fee in NSW of $30 (an agency may waive, reduce or refundthe fee )
has remained the same since 1989. It is no big deal although if
information access is a right, it could be argued that you shouldn't
have to pay to exercise it.

However the resumed parliamentary debate on the bill had me wondering whether Antony Jay and Jonathan Lynn who wrote the Yes Minister series had snuck into town
and were now writing briefing notes to be shared among government
members. He wasn't alone but Andrew Cornwell Member for Charlestown takes the Sir
Humphrey prize:

In a tight fiscal environment we should think about the effect
on, say, a university that is subject to the Government Information
(Public Access) Act. Most universities have a full-time employee
actively dealing with Government Information (Public Access) Act
applications, with the $30 fee, under the current arrangement.
Universities are afraid that removal of the $30 fee could result in the
number of applications multiplying tenfold or a hundredfold. That would
result in decreased services for students and increased costs to
universities, and it would affect people's ability to deliver better
educational outcomes for our kids. Some applications request information
from 20 years ago. People have a right to make Government Information
(Public Access) Act applications but they are subject potentially to
misuse..

......Imagine the increase in middle management that would result from
opening up, carte blanche, Government Information (Public Access) Act
applications.
Organisations, businesses, government departments and other government
agencies that are getting on with delivering services to the community
would end up with a reduced number of people on the front line and a
bloated middle management dealing with thousands of difficult,
potentially vexatious and problematic Government Information (Public
Access) Act applications that have no relevance to the actual service
delivery of those organisations "

He probably ran out of time before he got to the part that hospital beds and libraries would needto close.

As
grave predictions were made about what would transpire if
the application fee was abolished, no one mentionedhow much in application fees is collected a year. Or the cost in agency
time and resources of collecting fees, particularly as the
vast
majority of agencies in NSW don't allow payment on-line (from the Attorney General's own department: "enclose
the $30 application fee (cheques and postal orders made out to 'NSW
Department of Attorney General and Justice').

My guess is it is way in
excess of $30 every time a cheque or money order, for heaven's sake, comes in.But apparently well worth it to keep the hordes at bay, if government speakers are to be believed.

No-one mentioned that agencies are encouraged to provide free of charge information in response to an informal requestunder
the GIPA act if there are no public interest reasons why it should be
kept confidential.Or whether the barbarians at this gate are numerous
enough that we should rethink this dangerous idea.

And no-one provided a scrap of evidence to support claims that the effect would be negative all round. While advice from the Information Commissioner NSW was cited, the report on a review that commenced in October 2011 on fees and
charges has not been published.

The recent comment by the Australian Information Commissioner that abolishing the application fee had had knock on effects in the Commonwealth jurisdiction but he wouldn't be recommending its reintroduction apparently passed everyone by.

The Greens Jamie Parker on the cross-bench provided a touch of realism and sanity.

As to the rest, not parliament's meatiest debate or finest hour.

Another good idea if Mr Robertson is looking for one, is the same
on-line disclosure requirement for payments of entitlements to NSW
parliamentarians.The annual report for 2011-2012 of the Department of
the Legislative Assembly has been published recently. Annual reports by the Department of Legislative Council appear to have gone missing
for the moment at least. The only place you find any information about
entitlement payments to assembly members is in Appendix G of the report
- global amounts no details. (While not complete because it does not
include payments made by the parliamentary departments, and is not close
to real time, detailed disclosures regarding payments to or for
federal parliamentarians by the Department of Finance and Deregulation are published online, and more regularly than once a year.)

Thursday, December 06, 2012

"I intend to bring proposals to Government shortly for Ireland to participate in the global Open Government Partnership, reinforcing our commitment to progress in this area."

From the linked paper, Ireland and the OGP:

There is strong evidence that the Open Government agenda, comprising measures to secure greater openness, integrity, transparency and accountability of public administration by strengthening public governance, and the effectiveness of the state institutions, is an important determinant of an economy’s sustainable long‐term growth potential.........OGP membership would support the further development of a planned, structured and systematic approach to key Government reform priorities.Successful participation will require public bodies to work in concert with one another to help deliver the full potential of the membership.The requirements of OGP participation will be delivered within existing resources and would be expected to build initially on what the public sector is already committed to achieving under the Programme for Government consistent with the main themes of OGPIreland’s participation in the Open Government Partnership would be expected to provide an international dimension to many existing national efforts in openness and reform, and has a clear potential to contribute to Ireland’s economic recovery.

I've pleaded and been given an extension of time but the first four submissions published are all excellent first shots, each raising important issues. Hat tip to Craig Thomler, Rick Snell, Evelyn Doyle and John Wood for being diligent and putting sensible and authoritative observations about the state of foi land and how things could be improved.

I'm for new chasis and engine although some existing parts could work. That would involve a lot of territory in the next few months-more like a job for the ALRC, but they're skinny on resources these days. And of course all that work that went into advising the government in Secrecy laws and open government has been lying around somewhere in Canberra gathering dust for the last three years, along with quite a few recommendations that go back to their 1995 Open Government report that have rarely been mentioned since and were ignored in 2010.

They are a small resilient crowd at the ALRC but even their spirits may have flagged.

So overhaul might be all you can manage in the time but that was part of the problem last time in 2009-2010- new bits on old bones that are weary and showing their age.

Anyway, a submission on such broad ranging topics as the operation of the Freedom of information Actand the OAICtakes a bit of doing.Particularly in the absence of guidance in the form of an issues paper or statement from you on what might be useful. I'm working on it-with distractions like this....

And of course apart from those in government agencies, only rusted on aficionados out here know about the review. There were a couple of brief references in the media, but otherwise only those that stumble across the reference on the Attorney General'sDepartment website(fourth item in the fourth box on the right) or notice it listed as a "Hot Topic" on the OAIC website will know you are on the job and interested in their thinking.

No other government agencies-the ones that deal with those 25000 requests a year-appear to have brought your review to the attention of those that visit their websites. Wonder if they're mentioning it to FOI applicants or with an eye to being helpful to you on the effectiveness front, undertaking a survey or inviting comment from users on the FOI experience? If so, that might be a 30 year first.In case you're looking to fill in before that in-tray fills, hopefully to overflowing, some useful reading from recent papers includes:Measuring Openness by Sheila S Coronel. Comments on that paper by Helen Darbishire and Toby Mendel and Coronel's responseTransparency in Troubled Times by Alasdair RobertsThe UKGovernment response to the Constitutional Affairs Select Committee (pdf) review of the FOI act.

Tuesday, December 04, 2012

In a speech at the Melbourne search conference "Integrity in Government - A Work in Progress" today highly respected former minister, now government backbencher Senator John Faulkner spoke about the putative national anti corruption plan, the need for a Code of Conduct for parliamentarians, the long overdue comprehensive whistleblower protection legislation and electoral funding reform, and why there is no excuse for further delay on these important integrity reforms. And

the case for Australian membership of the Open Government Partnership.

Excuse me while I pass the parcel - sorry can't help adding some emphasis. Is anyone in PM&C, DFAT, OAIC, and AGIMO listening? Take it away Senator:

The fourth key step the Commonwealth Government should take is to
become a signatory and support the Open Government Partnership. Launched last year in New York, the OGP was established to promote
transparency, tackle corruption, invigorate civic participation and,
especially important in this digital age, harness new technologies, so
the ideals of freedom and democracy are strengthened in implementing
countries.

As the Open Government Partnership Declaration observes: “People all around the world are demanding more openness in government,
calling for greater civic participation in public affairs, and seeking
ways to make their governments more transparent, responsive, accountable
and effective”. With its membership now numbering 57, national governments of the Open Government Partnership commit:To be more transparent at every level, by increasing the availability of information about the activities of government.To engage more citizens in decision making, so they participate more
actively in their democracy, thereby making government more effective
and responsive.To implement the highest standards of professional integrity throughout administrations, and To increase access to new technologies for openness and accountability.Though it goes by the name “Open Government Partnership” – it is in equal measure a partnership with civil society. Government does not have a monopoly on wisdom. The commitments of OGP member states are put into practice by working
with civil society organisations to implement concrete plans of action. Already the OGP is setting a new global standard for good governance.

The OGP roll call of democracies committed to strengthening a global
culture of transparency and accountability includes some of our oldest
friends: the United States of America, the United Kingdom, Norway, and
Canada. I am disappointed that Australia is a notable absentee.

The Australian Government has indicated that it is considering the
detail of the initiative but has so far reserved its decision on
participating in the Open Government Partnership.

Given the Government’s stated commitment to transparency,
accountability and good governance, we should not hesitate to join this
international effort to promote these fundamental values.

Australia has always embraced and benefited from participation in international institutions and initiatives. We should seize the opportunity to do the same with the OGP.

It is ironic that the largest recipient of Australia’s overseas
development assistance, Indonesia, is a very active member of the Open
Government Partnership and currently a co-chair, yet, Australia is
nowhere to be seen.

When other recipients of Australia’s aid, such as the Philippines and
Tanzania, are also members, I find it very hard to justify Australia’s
absence. Membership of the Open Government Partnership would assist Australia to
spread values of transparency and accountability in our region – a
region where 22 of Australia’s 24 nearest neighbours are developing
countries.

In light of the Gillard Government’s recent Asian Century White Paper
and Australia’s new role as a member of the UN Security Council,
Australia should utilise the OGP to encourage and support continuing
efforts in our region to strengthen democratic processes and encourage
greater scrutiny of government.

Australia has a wealth of knowledge and experience to share with other
nations who comprise the growing Open Government Partnership. For example, last November the Government unveiled a new Transparency
Charter, which now publishes, online, detailed current information and
results about what our aid program is delivering.

Internal audit reports and strategic direction documents are also being published online. Against this backdrop it is not surprising our Agency for International
Development – AusAID - was recently ranked 18 of 72 donors in the 2012
AID Transparency Index developed by Publish What You Fund – The Global
Campaign for Aid Transparency.

Encouragingly, the report notes that AusAID had improved its
transparency score by 31 percentage points and its rank by 16 places,
but, it also made quite clear that Australia should consider joining the
OGP.

One example of an international transparency and accountability
initiative which Australia has committed to is the Extractive Industries
Transparency Initiative or EITI. At last year’s Commonwealth Heads of Government meeting in Perth,
Australia actively urged leaders to recognise the importance of
sustainable natural resource management and commit to the EITI.

The EITI promotes better governance in countries rich in oil, gas and
minerals by seeking to reduce the risk of corrupt diversion or
misappropriation of funds generated by the development of a country’s
resources.Australia is a member of the EITI Management Committee and has so far
committed $17.45 million (2007 to 2015) to the World Bank administered
Multi-Donor Trust Fund and the EITI Secretariat.

With the only other EITI-compliant country in our region being Timor
Leste, the OGP would provide an excellent opportunity for Australia to
encourage our other developing resource-rich neighbours such as
Indonesia, Papua New Guinea, and the Solomon Islands to sign on.

The OGP presents a great opportunity for Australia – a technologically
advanced and open democracy – to underpin future commitments to
openness, transparency, and accountability through engagement with an
internationally recognised and respected multilateral initiative.
Membership could only strengthen our democracy and governance. Through the Open Government Partnership we can advocate strongly for more openness in other nations while enriching our own.

If someone had followed through on Attorney General Roxon's "let's join" proposal in May, the Australian government would have a presence in London this week for meetings of the Open Government Partnership.

Not at the big table reserved for steering committee members mind you, or at any of the subcommittee meetings, just at the Peer Exchange meeting for all incoming participating countries.

Given some of the weighty issues on the agenda that need sorting we might of course bring to the meetings some of that capacity and skill that propelled us onto the UN Security Council. And some of our 30 years experience in the FOI game. But it might take time for our legendary diplomacy to produce results that move us from the 'new boy/girl' seats at the back into a position to contribute and learn from others-and that would be after we get around to deciding to sign up and take action to acquit our membership responsibilities.

Apart from an opportunity to talk to those from governments prepared to lead on open government on the big scene, any Australian representative present in London might have had a chance to chat also if they are there, to Mary Robinson, Ireland’s first female President and former UN High Commissioner for Refugees and Graca Machel from Mozambique and wife of Nelson Mandela- two of just announced senior advisors of an eight member Independent Expert Panel that will oversee the OGP Independent Reporting Mechanism.

"They will also play a key role in international and regional outreach on
IRM report findings and implications. Together with the technical
experts they will help ensure that the IRM delivers high quality,
credible and independent reports each year on what OGP participating
countries are doing to deliver on their commitments."

Meanwhile those who won't be in London or at other meetings but are interested in improving this aspect of democratic practice at home and abroad can follow developments through the excellent reporting by Toby McIntosh from Washington.

Congratulations to all the Walkley Awards for Journalism winners, particularly to Steve Pennells who won the Gold Walkley and two other awards for his news and feature articles in The West Australian newspaper on the Rineharts.And especially to these sharp 'freedom of information' as well as top journalism practitioners:Television reporting Michael McKinnon and colleagues Sharri Markson, Lee Jeloscek, and Adam Walters at Seven News, Seven Network for “The cabinet leak” (a NSW story from memory. Update-stories that revealed the NSW Government went against advice from Treasury, the Energy department and even the Crown Solicitor to
support ethanol blended petrol – a decision which favoured one of its
biggest donors Dick Honan of Manildra. A GIPA success -McKinnon tells me it was "a leak backed up by some great NSW treasury docs." "One week after the primary story went to air on January 23, Premier
Barry O’Farrell overturned the ban on regular unleaded fuel in his first
major backflip."

Investigative JournalismLinton Besser and Kate McClymont, The Sydney Morning Herald and The Age, “Exposed: Obeids’ secret harbour deal” (the first step in a shocking story now unfolding before the ICAC).Television Current Affairs, Feature or SpecialGeoff Thompson (who recounted recently at the National Information Law Conferencethe story about the remarkable FOI backdrop to the School for Killers) and Mary Ann Jolley and Mary Fallon, Four Corners, ABC TV, “Unholy silence”

On the related topic of transparency and reuse of data, the combined forces at the SMH and the University of Technology Sydney team that did some innovative work on the Register of Interests(don't call Senator Faulkner for a soundbite):Best Digital JournalismStuart Washington, Tom Allard, Conrad Walters and UTS Team, The Sydney Morning Herald, “Sky’s the limit on political gifts And completely off-subject, you just have to love the NT news winner of the Award for Best Three Headings to Paul Dyer, for “Eyeful tower”, “Dogs of phwoarrr!” and “Why I stuck a cracker up my clacker.”

As to what appeared below that headline, good taste dictates we don't go there.

Monday, December 03, 2012

We don't yet know the name of the former prime minister who wrote to Prime Minister Gillardexpressing views and suggesting action the government should take in response. But Australian Information Commissioner Professor John McMillan in Parnell and Department of the Prime Ministerand Cabinet [2012] AICmr 31 decided the letters in 2010 and 2011 were not private communications. Release under the Freedom of Information Act would not involve unreasonable disclosure of personal information that on balance was contrary to the public interest, or negatively impact
on the operations of the Australian Government.

(Seems reasonable to me.In fact it might positively be in the public interest that we know what other powerful people like media magnates and senior executives are saying when they have a quiet word, as Lord Levesonsuggested-and Australian Press Council Chair Professor Julian Disney agreed.)

The name of the former prime minister was not published in the decision, pending any exercise of rights of review and appeal. Details of other signatories to one of the letters was outside the scope of the application. (Update: On 31 December Parnell reported that the former PM is Malcolm Fraser.) Extracts from the OAIC decision below:

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About Me

Peter Timmins is an Australian lawyer and consultant who works on FOI and privacy protection issues in Sydney, NSW. He has Arts and Laws (Honours) degrees
from the University of Sydney, and has been involved in the FOI field for 25 years.Peter is an experienced public speaker and commentator. See In the News and Testimonials, and Career Summary for more details on background and experience.